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2006 DIGILAW 1836 (DEL)

SUMAN MALHOTRA v. MUKESH MALHOTRA

2006-10-10

S.L.BHAYANA, T.S.THAKUR

body2006
T. S. THAKUR, J, J. ( 1 ) THIS is a plaintiffs' appeal arising out of a suit for declaration which the court of Additional District Judge, Delhi has dismissed by the impugned judgment and decree. The court below has, while deciding preliminary issues No. 1 and 3 against the plaintiffs, held the suit in question to be barred not only by the provisions of Order 2 Rule 2 of the CPC but also by the law of limitation. The controversy arises in the following circumstances: ( 2 ) THE suit premises comprising a shop situate on the Church Main Road, fatehpuri, Delhi was taken on rent by one Sh. Shivraj Singh. After the demise of the tenant, the premises came in the possession of his grandson late Sh. Anuj malhotra, husband of Appellant No. 1 and father of Appellant No. 2 herein. The appellants claim that Sh. Anuj Malhotra was using the premises for carrying on business in the name and style of M/s Kumar Photographers. The plaintiffs appellants' further case was that after the demise of Sh. Shivraj Singh, his grandsons, namely, Sh. Anuj Malhotra and Sh. Mukesh Malhotra were holding the property as joint tenants and carrying on a joint family business in the same. According to the appellants, defendant-respondent No. 2 who happens to be the owner of the disputed premises had filed a collusive suit for permanent injunction against M/s Kumar Photographers and Sh. Mukesh Malhotra, respondent no. 1 in this appeal. That suit was decreed by order dated 18th December, 1986 on a compromise which fact never came to the notice of Sh. Anuj Malhotra who died on 14th November, 1999. It was only after Sh. Mukesh Malhotra filed his written statement in Suit No. 955/2001 that the plaintiffs' claim to have acquired knowledge about the filing of the collusive suit for injunction and the decree passed in the same necessitating a declaration to the effect that the said decree was not binding upon the plaintiffs. It was only after Sh. Mukesh Malhotra filed his written statement in Suit No. 955/2001 that the plaintiffs' claim to have acquired knowledge about the filing of the collusive suit for injunction and the decree passed in the same necessitating a declaration to the effect that the said decree was not binding upon the plaintiffs. The prayer made in the suit was in the following words:"it is, therefore, prayed that this Hon'ble Court may be pleased to pass a decree for declaration in favour of the plaintiffs and against the defendants to the effect that the plaintiffs are the joint tenants alongwith the defendant No. 1 in respect of the shop bearing No. 715, Church Mission Road, Fatehpuri, Delhi, and that the compromise decree obtained by the defendant No. 1 in collusion with the defendant No. 2 from the court officiary Naipal Singh, Sub Judge, Delhi, in suit No. 467/84 decided on 18. 12. 1986 is illegal nd void and that the said decree is not binding upon the plaintiffs and the defendant No. 1 is not competent to claim any independent right of sole tenancy in the said suit shop. Costs of the suit along with such other or further relief which this hon'ble Court may deem fit and proper be also passed/granted in favour of the plaintiffs and against the defendants. " ( 3 ) DEFENDANT No. 1 appeared to contest the suit and filed a written statement. On the pleadings of the parties, the court framed issues on 12th october, 2004 out of which issues 2, 3 and 4 extracted below were treated as preliminary issues: 2. Whether the suit is not maintainable in view of the earlier suit bearing No. 154/01/04 which is also pending disposal in this court as that suit had been filed on 11/05/01, i. e. , prior to institution of this suit" OPD-1 3. Whether the suit is barred by limitation" OPD-1 ( 4 ) WHETHER the suit is not maintainable in view of the preliminary objection No. 3" OPD-1 4. By the judgment and decree under appeal, the court below has decided issue No. 2 against the plaintiffs and held the suit to be barred by Order 2 rule 2 CPC in the light of the previously instituted Suit No. 154/01/04 filed by the plaintiffs for the same relief. By the judgment and decree under appeal, the court below has decided issue No. 2 against the plaintiffs and held the suit to be barred by Order 2 rule 2 CPC in the light of the previously instituted Suit No. 154/01/04 filed by the plaintiffs for the same relief. The court has also decided issue No. 3 against the plaintiff and held the suit to be barred by limitation. Issue No. 4 has, however, been left unanswered by the court. The present appeal, as noticed earlier, assails the correctness of the view taken by the court below. ( 5 ) APPEARING for the appellants, Mr. Aneja strenuously argued that the trial court was not justified in holding that the suit filed by the appellants was not maintainable. He submitted that the cause of action for filing the suit out of which the present appeal arises was different from that on which Suit No. 154/01/04 was filed. According to Mr. Aneja, it was the collusive decree obtained by the defendants that forms the basis of the present suit. The principle underlying Order 2 Rule 2 of the CPC, therefore, had no application to the instant case. It was further argued by the learned counsel that the court below was in error in holding the suit of the plaintiffs to be barred by limitation. The question of limitation was, in any case, a mixed question of law and fact which could not have been, according to Mr. Aneja, determined by the Court below as a preliminary issue. ( 6 ) ON behalf of the respondent, it was per contra argued that a suit for declaration to the effect that the plaintiffs are the lawful tenants in the disputed premises having already been filed by the plaintiffs, there was no question of their maintaining a second suit for substantially the same relief. It was contended that the suit was in any case misconceived as there was no adjudication of the questions raised in Suit No. 467/1984 which was dismissed as withdrawn. In the absence of any adjudication by competent Civil Court affecting the rights or the status of the plaintiffs, there was no room for the declaration prayed for. ( 7 ) WE have given our careful consideration to the submissions made at the bar and perused the record including the judgment under challenge. In the absence of any adjudication by competent Civil Court affecting the rights or the status of the plaintiffs, there was no room for the declaration prayed for. ( 7 ) WE have given our careful consideration to the submissions made at the bar and perused the record including the judgment under challenge. The plaintiffs' case has been and continues to be that after the demise of sh. Shivraj Singh, the disputed shop came under the possession of Sh. Anuj malhotra and Sh. Mukesh Malhotra, the grandsons of the deceased tenant. The shop was, according to the plaintiffs, held by the said two grandsons as joint tenants in which joint family business was carried on by the two. Since that position is disputed by Sh. Mukesh Malhotra defendant No. 1 respondent in this appeal, the plaintiffs have filed Suit No. 154/01/04 in which the plaintiffs have inter alia prayed for a declaration that the plaintiffs are the lawful tenants in the shop in question. Whether or not Sh. Anuj Malhotra and Sh. Mukesh malhotra were occupying the shop as joint tenants and whether or not after the death of Sh. Anuj Malhotra, the appellants acquired the tenancy rights qua the shop to be held jointly with Mukesh Malhotra are matters which will arise for determination in the said suit. A second suit for the very same relief would be clearly misconceived and hit by provisions of Order 2 Rule 2 of the CPC. That is precisely what the trial court has, in the instant case, held and in our opinion rightly so. The fact that the two suits relate to the same property in which the plaintiffs seek the very same relief of being declared as joint tenants along with Mukesh Malhotra not being in dispute, the Court was justified in holding that the second suit on the very same cause of action and for the very same relief was not maintainable. Issue No. 1 was, in the circumstances, rightly held against the plaintiffs. ( 8 ) THERE is another angle from which controversy can be viewed. According to the plaintiffs, the provocation for filing a fresh suit came from what according to them is a collusive decree obtained behind their back. The trial court has however correctly noticed that Suit No. 647/1984 filed by defendant no. 2 against defendant No. 1 was eventually dismissed as withdrawn. According to the plaintiffs, the provocation for filing a fresh suit came from what according to them is a collusive decree obtained behind their back. The trial court has however correctly noticed that Suit No. 647/1984 filed by defendant no. 2 against defendant No. 1 was eventually dismissed as withdrawn. If that be so, there was no adjudication by the court of the issues that may have arisen for determination in that suit. Just because a suit is filed though eventually dismissed as withdrawn could not cast any cloud on the rights of a person about whose property or status or qua whose rights the plaint may have made any averment or claim. It is only in case the claim made in the suit is adjudicated upon to the detriment of a party that any such party may be justified in seeking a declaration that the adjudication by the court or the relief granted does not bind him for whatever reasons that may be cited in support of such an assertion. The position may have been different if the court had on the basis of a compromise arrived at between the parties to the suit passed a decree in terms of the compromise in which event also any party adversely affected by any such decree could come to the court to seek relief. That is not however the position in the instant case. Here the final order passed by the court results in the dismissal of the suit as withdrawn. It may have been withdrawn in the light of some settlement arrived at between the parties but so long as any such settlement does not form a part of the decree there was no necessity of challenging the decree that simply dismissed the suit as withdrawn. ( 9 ) THERE was in the light of the above, no fresh cause of action for the plaintiffs to file a fresh suit. In any event, the decree sought to be questioned had been passed much before the filing of the earlier Suit No. 154/01/04. If at all it was considered necessary to challenge the same, the plaintiffs could perhaps do so by an amendment in the pending suit. A separate suit was not indicated having regard to the settled legal position that no party can be vexed twice for the same cause of action. If at all it was considered necessary to challenge the same, the plaintiffs could perhaps do so by an amendment in the pending suit. A separate suit was not indicated having regard to the settled legal position that no party can be vexed twice for the same cause of action. We may in this regard gainfully refer to the decision of the Supreme Court in Sidaramappa versus rajashetty and Ors. AIR 1970 SC 1059 where the court has observed :"the requirement of O. 2 R. 2 is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. 'cause of action' means the 'cause of action for which the suit was brought' Cause of action is a cause of action which gives occasion for and forms the foundation of the suit. If that cause of action enables a person to ask for a larger and wider relief than that to which the limits his claim, he cannot afterwards seek to recover the balance by independent proceedings. " ( 10 ) IN the totality of the above circumstances, the trial court was right in holding that the suit filed by the plaintiffs was not maintainable. That being so, we consider it unnecessary to examine whether the suit filed by the plaintiffs was barred by limitation and whether the issue regarding limitation could have been decided as a preliminary issue. In the result, this appeal fails and is hereby dismissed but in the circumstances without any order as to costs.